Confusion reigns over Sonoma pot rules

June 18, 2004

Derek J. Moore, Press Democrat

After the fourth criminal case in two weeks was dismissed, Sonoma County Sheriff Bill Cogbill on Friday called for tougher and more clearly defined medical marijuana rules.

Cogbill said the existing county guidelines, which are more generous than recommended by state law, are 'impractical' and difficult to enforce.

In addition, the sheriff said, deputies are frustrated that cases have fallen apart in court.

The most recent dismissal came Friday when prosecutors dropped charges against a Cazadero man who grew marijuana for five people, some of whom allegedly lacked proper physician approval.

'If we establish guidelines and don't follow them, why even have them?' Cogbill said.

The sheriff's comments highlight confusion in the local law enforcement community over medical marijuana laws, as well as a growing rift with pot advocates who are opposed to any changes in the rules.

The main issue is whether the current limits, which allow three pounds of marijuana per user per year and up to 99 plants, should be changed in light of a state law enacted last year allowing stricter limits.

Cogbill complained that cases that appear to be clear-cut -- such as those in which defendants had no physician approval -- are being dropped.

'The only (cases) we submitted were well outside the protocol,' he said. 'People are either not paying attention to it or are taking advantage of it.'

Cogbill said he initiated a meeting with District Attorney Stephan Passalacqua to discuss changes to the guidelines.

The issue appeared to be settled in Sonoma County in 2001 when guidelines were adopted to regulate medicinal use of marijuana after prosecutors lost two high-profile cases.

That didn't end all criminal cases. Since Passalacqua took office last year, eight people who claimed medical uses were charged with marijuana-related felonies. Four of those cases have been dismissed. One is still pending.

Cogbill suggested revisiting Sonoma County's guidelines in light of a 2003 state law that says users and primary caregivers may possess no more than eight ounces of dried marijuana. Additionally, they can maintain no more than six mature and 12 immature marijuana plants per qualified patient.

But the law allows local governments to adopt less restrictive limits.

Passalacqua said his office is reviewing the county rules. As for the sheriff's concerns that cases well outside the protocols are being dismissed, the district attorney said only that 'each case is reviewed on its merits.'

Chief Deputy District Attorney Larry Scoufos said prosecutors dismissed the four cases after it was determined the defendants were using marijuana for medical reasons, adding that it would have been difficult to get a conviction even in those instances where it seemed clear the patients weren't in full compliance with the law.

'Quite honestly, it's going to make it difficult to overcome that in a jury trial, even though technically the person wasn't in compliance,' he said.

In the two major cases taken to juries before the guidelines were established, prosecutors argued defendants were growing more marijuana than necessary for medical purposes. In each case, the defendant was acquitted.

Passalacqua criticized the prosecutions during his 2000 campaign, but has recently come under fire from activists who say he reneged on a promise not to prosecute medical marijuana users.

Cogbill recently met with the activists, and floated a proposal to reduce the allowable amounts to one pound per user per year and 25 plants.

Cogbill said he has since reconsidered that position. He said he still supports the 25-plant rule, but thinks one pound may not be enough for some patients.

'I originally said that but I understand the argument that that may not be enough for patients to get through the whole year,' he said.

Activists say the rules shouldn't revolve around the number of plants but on the total amount of growing space, which they say should be maintained at 100 square feet.

They also say that law enforcement shouldn't be in charge of setting the guidelines.

'Do you want law enforcement to come in and determine how much Valium you should have every day?' asked Doc Knapp, a spokesman for the Sonoma Alliance for Medical Marijuana. 'That's a medical decision between a patient and a doctor.'

Alan MacFarlane, who was acquitted in the county's first medical marijuana case to go to a jury in 2001, said he has physician approval to use pot to ease spasms and side effects from chemotherapy for thyroid cancer.

'My choice is whether to take Percodan and have my liver and kidneys shut down,' he said. 'With this (marijuana), there's no overdose or damage to my body.'

Seven Sonoma County residents who claim they use or grow marijuana for medicinal purposes were facing felony charges brought by the district attorney before their cases were dropped this month. One other case is still pending.

Activists pushed Passalacqua to dismiss all of the cases and say new ones shouldn't be filed.

On Friday, prosecutors dropped charges against Nicholas William Johnson, 55, who said he was growing marijuana for five people who had doctors' recommendations.

Sheriff's deputies seized 98 plants from Johnson's property in October. He was arrested in February on charges of illegal cultivation and possession of marijuana for sale.

Prosecutors said some of the users lacked valid physician approvals, but charges were dropped after Johnson came forward with evidence that approvals had been obtained.

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